第22章

I need hardly mention, after what has been said, that there is no such thing as this distinction in the thirteenth century law books. I must not omit, however, to refer to one expression which may be taken to stand in the place of the later 'villain regardant to a manor.' Britton (ii, 55) gives the formula of the special plea of villain ge to the assize of mort d'ancestor in the following words. 'Ou il poie dire qe il est soen vileyn et soen astrier et demourrant en son villenage.' There can be no doubt that residence on the lord's land is meant, and the term astrier leads even further, it implies residence at a particular hearth or in a particular house. Fleta gives the assize of novel disseisin to those who have been a long time away from their villain hearth* ('extra astrum suum villanum,' p, 217). If the term 'astrier' were restricted to villains it would have proved a great deal more than the 'villain regardant' usually relied upon.

But it is of very wide application. Britton uses it of free men entitled to rights of common by reason of tenements they hold in a township (i, 392). Bracton speaks of the case of a nephew coming into an inheritance in preference to the uncle because he had been living at the same hearth or in the same hall (in atrio or astro) with the former owner,* and in such or a similar sense the word appears to have been usually employed by lawyers.* On the other hand, if we look in Bracton's treatise for parallel passages to those quoted from the Fleta and Britton about the villain astrier, we find only a reference to the fact that the person in question was a serf and holding in villainage and under the sway of a lord,* and so there is nothing to denote special condition in the astrer. When the term occurs in connexion with villainage it serves to show that a person was not only a bondman born, but actually living in the power of his lord, and not in a state of liberty. The allusion to the hearth cannot possibly mean that the man sits in his own homestead, because only a few of the villains could have been holders of separate homesteads, and so it must mean that he was sitting in a homestead belonging to his lord, which is quite in keeping with the application of the term in the case of inheritance.

The facts we have been examining certainly suppose that in the villains we have chiefly to do with peasants tilling the earth and dependent on manorial organisation. They disclose the working of one element which is not to be simply deduced from the idea of personal dependence.

It may be called subjection to territorial power. The possession of a manor carries the possession of cultivators with it. It is always important to decide whether a bondman is in the seisin of his lord or not, and the chief means to show it is to trace his connexion with the territorial lordship. The interposition of the manor in the relation between master and man is, of course, a striking feature and it gives a very characteristic turn to medieval servitude. But if it is not consistent with the general theory laid down in the thirteenth century law books, it does not lead to anything like the Roman colonatus. The serf is not placed on a particular plot of land to do definite services under the protection of the State. He may be shifted from one plot within the jurisdiction of his lord to another, from one area of jurisdiction to another, from rural labour to industrial work or house work, from one set of customs and services to another. He is not protected by his predial connexion against his lord, and in fact such predial connexion is utilised to hold and bind him to his lord. We may say, that the unfree peasant of English feudalism was legally a personal dependant, but that his personal dependence was enforced through territorial lordship.

NOTES:

1. Thorold Rogers, History of Agriculture and Prices, i. 70; Six Centuries of Work and Wages, 44. Cf Chandler, Five Court Rolls of Great Cressingham in the county of Norfolk, 1885, pp. viii, ix.

2. Stubbs, Seventeen Lectures, 304, 305; Maitland, Introduction to the Note-book of Bracton, 4 sqq.

3. Dial. de Scacc. Ii. 10 (Select Charters, p. 222). Cf i. 10; p.

192.

4. Glanville, v. 5; Bracton, 4, 5; Fleta, i. 2; Britton, ed.

Nichols, i. 194.

1. Bracton, 5; Britton, i. 197. Pollock, Land-laws, App. C, is quite right as to the fundamental distinction between status and tenure, but he goes too far, I think, in trying to trace the steps by which names originally applying to different things got confused in the terminology of the Common Law. Annotators sometimes indulged in distinctions which contradict each other and give us no help as to the law. The same Cambridge MS. from which Nichols gives an explanation of servus, nativus, and villanus (i. 195) has a different etymology in a marginal note to Bracton. 'Nativus dicitur a nativitate-quasi in servitute natus, villanus dicitur a villa, quasi faciens villanas consuetudines racione tenementi, vel sicut ille qui se recognoscit ad villanum in curia quae recordum habet, servus vero dicitur a servando quasi per captivitatem, per vim et injustam detentionem villanus captus et detentus contra mores et consuetudines juris naturalis, (Cambr. Univers. MSS. Dd. vii. 6. I have the reference from my friend F.W. Maitland).